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Saturday, June 18, 2016

Why Kenya's Hate Speech Legislation Is Not Really About Hate

Every once in a while, Kenyans love to get
into a tiff over the preponderance of hateful and bigoted messaging that forms
the subtext of our national politics. While the idea of the nation as, in David
Ndii’s words, “a marriage of tribes”, of ethnicities that compete for chunks of
a “national cake”, appears to be taken for granted, the seemier side of that
supposed competition intermittently captures national attention.

This week, the news has been dominated by
the arrest and incarceration of 8 MPs from across the political divide on
charges of ethnic incitement and hate speech. Amid all the ink that is spilt
decrying (and defending) what was said, relatively little is dedicated to
examining how our history, our understanding of what Kenya is and the structure
of our politics conspire to fan the flames of ethnic bigotry.

In a sense, the furore over hate speech is not
really about hate but about tribes. The Kenyan political scene is wholly
tolerant of ill-informed and detestable statements about categories people
identified by race, gender, sexuality and class. Further, the fuss is not about
the existence of ethnic prejudice per se, but about the public expression of
the whispered views that citizens are encouraged to hold by politicians.

Even our laws specify this ethnic basis for
proscribing hate speech. Section 13 of the National Cohesion and Integration
Act under the title “Hate Speech” only criminalizes “threatening, abusive or
insulting or involves the use of threatening, abusive or insulting words or
behaviour … if such person intends thereby to stir up ethnic hatred, or having
regard to all the circumstances, ethnic hatred is likely to be stirred up.”
This is despite the constitution describing its protection of free expression
as not extending to hate speech based on “race, sex, pregnancy, marital status,
health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth.” Thus the fairly common,
and abhorrent, statements about gays, women and refugees are perfectly legal
provided they say nothing about their victim’s tribe.

In fact, in order to qualify as hate
speech, speech must not necessarily be intended to cause hate. That it is
likely to do so, whether through recklessness or ignorance on the part of
either the speaker or the audience, is enough. Neither does hateful talk about
individuals count, unless such will incite tribal hatreds. This essentially
protects politicians, but not their supporters from personal abuse (rather
similar to the colonial era law in the penal code which criminalizes “obscene,
abusive or insulting language” against ones employer but not against one’s
employees!). These are quirks born of the wholly understandable preoccupation
with preventing ethnic based bloodletting such as was witnessed in the
aftermath of the bungled 2007 elections.

It is perhaps not surprising that a nation
taking umbrage only public expressions of ethnic bigotry fundamentally sees
itself as an arena of existential tribal competition. The idea of politics as
managing and exploiting ethnic relations is one the ruling class is happy to peddle
as it not only disguises their class-based exploitation, but also allows them
to portray the fruits of this exploitation as a benefit to at least some of
their victims. So instead of the reality of an elite class stealing from
everyone else, we are presented with the illusion of tribes vicariously having
a stake in the fortunes of their elites.

The current government “crackdown” notwithstanding,
the governing elite and their rivals in the opposition are unlikely to want to
fundamentally change this state of affairs. In fact, that President Uhuru
Kenyatta has not once stood up to condemn Moses Kuria’s regular outrages, is
only outdone by Raila Odinga’s defense of George Aladwa’s equally loose talk.
As we approach the 2017 election, it is much more likely that politicians on
both sides will continue to whip up ethnic divisions with the tacit approval of
their principals.